Lake Arthur Drainage Dist. v. Field

• Citation: 27 N.M. 183,199 P. 112
• Decision Date: 20 June 1921
• Docket Number: No. 2599.,2599.
• Parties: LAKE ARTHUR DRAINAGE DIST.v.FIELD, STATE COM'R OF PUBLIC LANDS.
• Court: Supreme Court of New Mexico

27 N.M. 183

199 P. 112

LAKE ARTHUR DRAINAGE DIST.

v.FIELD, STATE COM'R OF PUBLIC LANDS.

No. 2599.

Supreme Court of New Mexico.

June 20, 1921.

Syllabus by the Court.

Specific assessment on property for improvements, based upon benefits, the cost of which is assessed against the property, is not a tax within the constitutional sense.

Chapter 69, Laws 1917, as amended by chapter 87, Laws 1919, which made the provisions of the drainage act (sections 1877 to 1958, Code 1915) specifically applicable to lands owned by the state of New Mexico, and directed the commissioner of public lands to issue proper vouchers, payable out of the income fund derived from lands of the class benefited, for the payment of the assessment made, is unconstitutional, because under the terms of the Enabling Act, as accepted and confirmed by the Constitution of the state, the state has no power to improve the granted lands and charge the expense of the improvements against said lands, or funds derived from lands belonging to the class benefited.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Petition by the Lake Arthur Drainage District for a writ of mandamus against Nelson A. Field, Commissioner of Public Lands, to compel the issuance of vouchers for drainage assessments. Judgment for petitioner on demurrer, and defendant appeals. Reversed, with directions.

Specific assessment on property for improvements, based upon benefits, the cost of which is assessed against the property, is not a tax within the constitutional sense of provision exempting state property.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for appellant.

Reid, Hervey & Iden, of Roswell, for appellee.

ROBERTS, C. J.

The Lake Arthur drainage district of Chaves county, on August 20, 1920, filed a petition in the district court of Santa Fé county for a writ of mandamus, directing the commissioner of public lands of New Mexico to issue vouchers for the payment of certain drainage assessments against certain lands granted to the state of New Mexico by the United States, by Act June 21, 1898 (30 Stat. 484), for common school purposes, and confirmed by the Enabling Act, and certain lands for the benefit of the Agricultural College. Attached to the writ as Exhibit B was the order of the district court confirming the preliminary report of the commissioner, and among the findings made by the court was the following:

“That the proposed work is necessary and of utility in carrying out the purposes of the petition, and the same would promote agricultural interests, and the benefits will exceed the cost in each and every instance upon each and every lot, tract, parcel, or easement of land to be included in said drainage district.”

And contained in the final order, which was attached as Exhibit C, were the following findings:

“That the commissioners have caused to be prepared by the said engineer a detailed list of lands to be benefited by the proposed work, and after due and proper consideration, and after a thorough personal examination of each and every 40-acre tract or subdivision within said drainage district, they have assessed against each tract, lot, and easement of land in said district, by whomsoever held, the amount of benefits which they have determined will be caused by the same by the construction of the said drainage system.

The court further finds that the commissioners have apportioned and assessed the part of the costs of construction above mentioned, over and above the amount assessed against such corporations receiving special benefits as aforesaid, against the several benefited tracts, lots, and easement of land in said drainage district in proportion to the benefits they will derive therefrom. * * * And the court finds that said assessments as reported by the commissioners for costs of construction, as well as for benefits, are just, fair, and equitable assessments, and have been arrived at after a thorough investigation and examination by the commissioners on the ground.

That all of the lands within said proposed drainage districts are in need of drainage, and that the drainage thereof as proposed will result in great benefit to and improvement of the said lands; that the system of drainage as proposed by the commissioners, as mentioned and described in their report and as herein referred to, is feasible and proper in all respects and the benefits therefrom on each and every 40-acre tract or subdivision thereof will be in excess of the assessments made against the said lands.”

The application for the writ of mandamus was bottomed on the provisions of chapter 69, Laws 1917, as amended by chapter 87, Laws 1919, which made the provisions of the drainage act (sections 1877 and 1958, except section 1932, Code 1915), specifically applicable to lands owned by the state of New Mexico, and directed the commissioners of public lands to issue proper vouchers, payable out of the income fund derived from lands, of the class benefited, for the payment of assessments made; that is to say, if the lands benefited by the drainage were lands granted to the state of New Mexico for the use of the common schools, then the cost of the improvements must be paid out of the income fund of the common school land. The commissioner was required under the act to issue his voucher to the state auditor, certifying that the assessments had been legally made and describing the land therein, stating the institutions to which the same pertains, and the auditor was thereupon required to draw his warrant against the income fund of such institution for the amount of such assessment or the installment thereof due. The excepted section of the Code (1932), which made the drainage assessments a lien on the land, was not made applicable to the granted lands. As to these lands, no lien was provided for, but payment was to be made as indicated. By section 4, chapter 69, Laws 1917, it is further provided that where state lands were sold under contract upon the deferred payment plan, assessments might thereafter be made against the interest of the purchaser, and any unpaid assessments were made a lien on the equity of such purchaser, and such equity might be sold as other lands. Section 3 provides that any state lands within a drainage district, the value of which has been enhanced by the creation and operation of the system, should not be sold at a price less than their actual value, and provision is made for appraisement. To the alternative writ which was issued the commissioner made return in the form of a demurrer, both to the petition and to the writ.

The demurrer was based on two grounds, briefly stated as follows: (1) That said lands cannot be taxed; (2) that the drainage act, in so far as state lands are concerned, is in contravention of section 10 of the Enabling Act as ratified and accepted by the Constitution of the state (section 9, art. 21). The demurrer was overruled, and the commissioner stood on the demurrer, and judgment was entered against the official, directing him to issue the vouchers for the payment of the assessment alleged to be due in the application for the writ. From the judgment, the present appeal is prosecuted. There are two points involved in the appeal.

[1] We will consider first the question as to whether this is a tax upon state lands in the constitutional sense. Section 3 of article 8 of the Constitution of the state exempts from taxation property of the state. Under this provision it would be beyond the power of the state Legislature to provide for a tax upon state property, but is the levying of assessment in proportion to benefits, in other words an assessment tax, a tax within the constitutional inhibition? Does section 3 of article 8 of the Constitution relieve the state and the other political subdivisions and institutions therein mentioned from liability for special assessment for direct improvements? This court, in the case of Dexter-Greenfield Drainage District, 21 N. M. 286, 154 Pac. 382, considered at length the drainage act of this state, and to some extent the nature of drainage assessments. We there drew the distinction, generally approved by the authorities, between a tax and an assessment for benefits for improvement. In that case the drainage act was attacked because it conferred upon the court the power of taxation contrary to the Constitution. We there stated:

“The cases referred to in the appellant's brief upon this point are cases involving the collection of taxes, as distinguished from assessments for benefits, as provided in this act. There is a distinction in the authorities between a tax and a special assessment, when involved in the question of the constitutional power to levy and collect the same.”

The position was sustained by quotations from Cooley on Taxation and the case of Bryant v. Robbins, 70 Wis. 258, 35 N. W. 545, and many other authorities. It is true there is a conflict of authority upon the proposition, but we believe the better rule is that a specific assessment of property for improvements, the cost of which is assessed against the property, is not a tax within the constitutional sense. The cases are very numerous, and we will cite only the following: City of Clinton v. Henry County, 115 Mo. 557, 22 S. W. 494, 37 Am. St. Rep. 415; Lockwood v. St. Louis, 24 Mo. 20; Sheehan v. Good Samaritan Hospital, 50 Mo. 155, 11 Am. Rep. 412; Edwards Construction Co. v. Jaspar County et al., 117 Iowa, 365, 90 N. W. 1006, 94 Am. St. Rep. 301; Commissioners v. Ottawa, 49 Kan. 747, 31 Pac. 788, 33 Am. St. Rep. 396; Mt. Sterling v. Montgomery County, 152 Ky. 637, 153 S. W. 952, 44 L. R. A. (N. S.) 57; New Orleans v. Warner, 175 U. S. 120, 20 Sup. Ct. 44, 44 L. Ed. 96.

In the case of Lockwood v. St. Louis it was held that church property was liable for special sewer assessments; and in the case of Clinton v. Henry County, that the county was liable for special assessments for street paving;...